Daily Insurance: Monday, 27 April 2015 View in browser

A daily Bulletin listing our choice of Decisions of Superior Courts of Australia.

Daily Insurance

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Executive Summary (One Minute Read)
Moshos v French (NSWCA) - contract - evidence - no binding agreement for transfer of shares in company - appeal dismissed
Bailey v RSL Lifecare Ltd (NSWSC) - contract - no binding agreement for licence of unit in retirement village - no estoppel - summons dismissed
Savino v Schieven (VSCA) - negligence - motor vehicle accident - no arguable error by jury - leave to appeal refused
Grocon Constructors (Qld) Pty Ltd v Juniper Developer No.2 Pty Ltd (QSC) - construction contract - preliminary issue - liquidated damages clause was not a penalty
Vision Eye Institute Ltd v Kitchen (No 2) (QSC) - damages - breach of services agreement by ophthalmologist causing closure of clinics - damages assessed at $10,845,476
Insurance Australia Ltd v Albrecht (No 2) (ACTSC) - costs - case was not a “test case” - insurer not required to pay defendant’s costs - costs to follow event
Summaries With Link (Five Minute Read)
Moshos v French [2015] NSWCA 106
Court of Appeal of New South Wales
Macfarlan, Emmett & Leeming JJA
Contract - evidence - appellant claimed he entered legally binding agreement with respondent pursuant to which respondent would incorporate company and parties would cause company to apply for and obtain facility  - appellant asserted parties agreed that once facility granted respondent would transfer 50 % of his shareholding of company to appellant - company formed - facility granted - respondent declined to transfer shares - primary judge found parties did not enter alleged agreement and dismissed proceedings - r28.2 Uniform Civil Procedure Rules 2005 - inferences - held: no grounds relied on in notice of appeal made out - no material relied on in oral argument supported conclusion that primary judge erred in rejecting appellant’s case - appeal dismissed.
Bailey v RSL Lifecare Ltd [2015] NSWSC 448
Supreme Court of New South Wales
Darke J
Contract - equitable estoppel - plaintiff alleged it made binding contract with defendant whereby plaintiff would licence residential unit in retirement village operated by defendant - plaintiff sought decree of specific performance or that defendant was  estopped from denying it was bound to enter into alleged agreement - defendant denied agreement reached - defendant contended that even if binding agreement made, specific performance should be refused it would require defendant to breach Retirement Villages Act 1999 - defendant denied any estoppel arose - held: no binding contract entered between parties for licence of unit - parties’ conduct did not lead to conclusion contract was made - estoppel argument failed - summon dismissed.
Savino v Schieven [2015] VSCA 67
Court of Appeal of Victoria
Warren CJ; Ferguson & Kaye JJA
Negligence - motor vehicle accident - motorcyclist injured when his motorcycle collided with motor vehicle driven by respondent - motorcyclist claimed damages against respondent - jury returned verdict that there was no negligence by respondent that caused applicant’s injuries - applicant sought leave to appeal on basis jury’s verdict not open on evidence adduced at trial - held: jury not bound to find respondent did not operate indicator, check mirrors or undertake head check - respondent did not fail to keep proper lookout - Court not persuaded there was arguable error by jury - no ‘real prospect of success’ on appeal - leave to appeal refused.
Grocon Constructors Pty Ltd v Juniper Developer No.2 Pty Ltd [2015] QSC 102
Supreme Court of Queensland
P Lyons J
Construction contract - preliminary question - plaintiff sought declaration liquidated damages clause of contract with first defendant was void because it imposed penalty - construction of contract - held: liquidated damages clause operated when there had been breach of obligation to achieve Practical Completion by relevant date - it applied only to breach of that obligation, not to any breach of many obligations under contract - any delay in Practical Completion would have been expected by parties to have prevented defendant from settling contracts of sale - liquidated damages clause was not affected by penalty doctrine - liquidated damages clause should be regarded as genuine pre-estimate by parties to that contract of damages likely to be suffered should there be delay in Practical Completion.
Vision Eye Institute Ltd v Kitchen [2015] QSC 66
Supreme Court of Queensland
Applegarth J
Damages - contract - Court gave judgment for second plaintiff company against defendant ophthalmologist for damages for breach of service agreement - assessment of damages - closure of clinics caused by wrongful termination of agreement - whether  macular degeneration income should be included in assessment of lost earnings - whether shares in company owned by defendants and held in escrow should be released - held: macular degeneration income included - defendant ceased to be employee under agreement in circumstances where he was a “Bad Leaver” under escrow deed - defendants not entitled to release of escrow shares  - damages awarded in sum of  $10,845,476 - restricted securities to be released from escrow on condition plaintiffs entitled to sell shares on behalf of defendants and apply Agreed Proportion of proceeds of sale in reduction of defendant’s liability.
Insurance Australia Ltd v Albrecht (No 2) [2015] ACTSC 94
Supreme Court of the Australian Capital Territory
Mossop AsJ
Costs - Court found in favour of plaintiffs in proceedings and declared s155(3)(c) Road Transport (Third Party Insurance) Act 2008 applied to assessment of costs arising out of  consent judgment - usual order would that costs followed event - however defendant submitted case run as a test case and submitted NRMA should pay his costs of proceedings - held: not appropriate to characterise the case as a “test case” - case arose out of particular contest arising in very particular circumstances - costs to follow event